Caesarean section in the late second trimester as an alternative to a refused abortion: an unethical and clinically unjustifiable practice

In 2013, I published a paper about the death of Savita Halappanavar in Ireland, who died completely unnecessarily from uterine sepsis during pregnancy. Her death was due to the refusal of the Catholic-run hospital providing her maternity care to terminate her 17-week non-viable pregnancy, apparently because there was still a fetal heartbeat. In that paper, I said that termination of pregnancy to save a woman’s life, which is legal in all but 5-6 countries globally, should be understood to mean “to prevent a pregnancy from becoming life-threatening before it is already life-threatening...One would have thought that that includes termination to complete an inevitable miscarriage and to end an unviable pregnancy, both of which could easily become septic ‒ as well as termination when the woman has or develops a life-threatening illness while pregnant.”

In that paper, I was concerned only about unviable pregnancies and saving the life of the woman involved. I did not take into account what I believe is a newly developed policy among some Catholic physicians to act to save the life of the fetus, not just the woman, as their main or only basis for action. Since 2012, several new cases have come to light that suggest what appears to be a new way to refuse a woman an abortion before the pregnancy goes to term or ends spontaneously in a miscarriage.

These are cases where the pregnant woman (or girl) is not seen to be at immediate risk of dying, is kept in hospital until such time as the pregnancy is viable in the late second trimester, and is then “offered” or forced to have a caesarean section as an alternative to carrying the pregnancy to term ‒ in order to “save the unborn baby”. Ironically, as far as the baby is concerned, the earlier in pregnancy it is delivered, the more risk there will be to its life. The failure of the anti-abortion proponents of such a policy reveals not only how little they value the life of the girl/woman involved but also how profoundly uninterested they seem to be in whether the “unborn baby” has the best chance of staying alive, let alone being healthy.

This paper describes five such cases, from Costa Rica, El Salvador, Ireland, Paraguay, and most recently a bill tabled in February 2016 in the Alaska USA state legislature. It argues that the denial of the abortions concerned is unethical, violates a woman’s right to health, and deserves to be condemned just as much as cases in which the woman is left to die rather than being allowed an induced abortion. The Alaska bill requires doctors to terminate pregnancies in such a way that the fetus has the best chance to be born alive.

Two cases from Costa Rica: old style vs. new style
Two cases from Costa Rica show how the change in practice has manifested itself. In 2007, a 27-year old Costa Rican woman with an anencephalic pregnancy was refused an abortion and forced to carry the pregnancy to term. After seven hours of labour, she gave birth to a dead baby. According to a report by the Colectivo por el Derecho de Decidir in Costa Rica, as a result of this experience she was still fighting depression, anxiety attacks, chronic diarrhoea, and social withdrawal in 2013.

In 2012, “Aurora”, also from Costa Rica, was a very different case. The Colectivo por el Derecho de Decidir reported that Aurora, aged 32, became pregnant after months of trying. However, at eight weeks of pregnancy, the doctors informed her that the fetus had multiple severe malformations that would not allow it to survive outside the uterus, including severe scoliosis, decreased level of amniotic fluid, and a complete absence of abdominal wall, which meant the internal organs (e.g. liver and intestines) were sitting outside the body. Further tests confirmed the diagnosis of a non-viable pregnancy. A little after her first appointment, Aurora started experiencing strong abdominal and back pain that prevented her from working and seriously affected her physical and emotional health. She described “in addition to the physical pain, the stress and suffering resulting from the news, which has provoked constant sadness, depression, severe stress, insomnia, nightmares, and constant tears”. She requested an abortion numerous times. However, the medical professionals and medical authorities in Costa Rica repeatedly denied her the right to a therapeutic abortion, even though it is permitted under Costa Rican law, Article 121. When she was 29 weeks pregnant, her waters broke, and then she was “allowed” to have a caesarean section.

The offer or rather imposition of a caesarean section on a woman who has asked for an abortion, following the denial of the abortion, is a new phenomenon, and it is happening in more countries than just Costa Rica.

A case in El Salvador
Abortion is illegal in El Salvador, even to save the life of the woman. In June 2013, “Beatriz”, 22 years old, underwent a caesarean section at 27 weeks of pregnancy, giving birth to a baby without a brain, who died five hours later. The previous week, having delayed a decision, the country’s Supreme Court had refused to allow an abortion for Beatriz. Her plight drew international attention and a ruling from the Inter-American Court on Human Rights, which said that El Salvador should protect her life and help her to end the pregnancy. As far as the Health Ministry was concerned, that is what they did.

The Health Ministry said it would allow a caesarean section because the pregnancy was already at 26 weeks, and the country’s strict abortion laws (which it seems do not consider an abortion to be an abortion by that stage) were no longer at play. Thus they felt they had done what the Human Rights Court asked. This is not the case. A caesarean section is not an induced abortion even if it terminates the pregnancy. One of the main aims of a caesarean section is to deliver a live baby as a form of emergency obstetric care ‒ unless the baby is already dead. Ensuring the woman survives the pregnancy is the other aim, of course.

In early April 2013 doctors advised Beatriz that continuing her pregnancy was very high risk, so she requested an abortion. Yet the Health Ministry was reported as saying it could determine what was most medically sound for “the mother versus the unborn baby”, and a news report at the time claimed they were lauded internationally for working to save her life, though lauded by whom is not clear.

“Doctors at the Maternity Hospital,” it was reported, “had been preparing to perform the c-section at the slightest danger signs to save Beatriz’s life, said Maria Isabel Rodriguez of the Health Ministry. A majority of judges on the high court rejected the appeal by Beatriz’s lawyers, saying physical and psychological exams by the government-run Institute of Legal Medicine found that her diseases were under control and that she could continue the pregnancy.”

Beatriz was as good as imprisoned in the hospital and unable to care for her 20-month-old son for some two months while this went on. Compounding the emotional stress during her hospitalization, anti-choice groups managed to contact her by phone to attempt to convince her to change her mind about requesting an abortion. They offered to move her from the under-funded and overcrowded public maternity hospital to an exclusive private hospital, which they described as equivalent to a five-star hotel, and to take care of all her expenses. The most inhumane episode occurred when an anti-choice group brought Beatriz a basket of baby clothes, including small knitted caps to cover the head of the unviable fetus she was carrying.

The Health Ministry’s claim that she was in safe hands was patently false and their description of the c-section as a “premature delivery”, when the baby had no chance of survival, was appalling. What could possibly have gone on in the minds of people working in health who were so dismissive of this woman’s life, let alone her physical and mental health and well-being? Why did they consider they owed a duty of care to a fetus that had no sentience, no life and no chance of life?

A clue to their answer may be found in a comment made by an anti-abortion spokesperson who claimed that “the rights of all had been respected”, and that “it wasn't necessary to perform an abortion, the point was to respect the baby's life and to give Beatriz the care and the right to health that she deserved.”

In fact, three months after the caesarean section, Beatriz was struggling daily with poor health resulting from the denial of an early abortion, while trying to rebuild a life for herself and her son in a poor rural area. Although she was holding her own when she was interviewed by RH Reality Check, her future, both short- and long-term, was uncertain because of permanent health problems, including aggravated lupus and kidney disease. Where was the hospital and the anti-abortion movement for her then?

Forcing a woman to deliver a live baby against the woman’s wishes: Ireland
In Ireland, under the new law brought in following Savita’s death, the only time a woman can legally have an abortion is if her life is at risk.

Ms Y: the cruellest story of them all
Ms Y, a young asylum seeker, had been raped in her country of origin and found she was pregnant when she was about eight weeks gone, not long after arriving in Ireland. She immediately expressed a desire to die rather than bear the rapist’s child. She was referred to the Irish FPA for help to go to England for an abortion but although the details of what happened are not clear, it must have taken some 8 weeks to try and arrange everything, and by then she would have had to pay for a second trimester abortion. The cost was too high and she could not afford it. At that point, being 16 weeks pregnant, it was reported that she attempted to take her own life. A friend advised her to go to her GP and get help. The GP referred her to a hospital, where she saw two psychiatrists and was then taken to another hospital. There she had a scan and was apparently told the pregnancy was 24 weeks and one day, as if such accuracy were feasible. They said they could not do an abortion that late. She said: “You can leave me now to die. I don’t want to live in this world anymore.”

After that, she said she was watched all the time, and she stopped eating and drinking. A doctor came and told her they would do an abortion in several days but that she had to start eating and drinking, so she did. Then, she was told the plan had changed and they couldn’t do it. This happened more than once until, finally, they claimed that because she was too far gone, they could only do a caesarean section. She said: “They said wherever you go in the world, the United States, anywhere, at this point it has to be a caesarean. That was of course a lie, but she didn’t know that at the time.

A spokeswoman for the Health Service Executive (HSE), when asked about the allegation that Ms Y was not offered a right to appeal the decision to carry out a caesarean section, said her request for a termination on the basis of suicide risk had been acceded to. Her words were that “a pregnancy can be terminated by way of delivery through caesarean section, as it was in this instance.” Thus, caesarean section is magically turned into an abortion method, even though what they had done was to force her to accept the delivery of a live baby. Moreover, the spokeswoman said that as they had acceded to Ms Y’s request for a termination, there was no requirement for a review of what had happened.

In short, they said they could not do an abortion, and then afterwards when they had forced her to accept the early delivery of a live baby, they claimed they had done an abortion. George Orwell would have been proud of the double-think.

Ms Y said: “When I came to this country I thought I could forget suffering… The scar [from the c-section] will never go away. It will always be a reminder. I still suffer. I don’t know if what has happened to me is normal… I just wanted justice to be done. For me, this is injustice.”

Saving the life of the baby against the wishes of a pregnant child’s mother: Paraguay
The case of the 10-year-old girl in Paraguay made international news in May 2015. The girl was apparently sexually abused by her stepfather for something like two years and became pregnant. Her mother took her to the hospital when she complained of stomach pains, and it was only discovered then that she was 20 weeks pregnant. Her mother claimed she had previously reported the sexual abuse to the police, but they had done nothing. She requested an abortion for her daughter, but this was refused. Instead, the mother was arrested and charged with conspiring in the sexual abuse. The stepfather was found some days later and also arrested. The little girl was kept in hospital until she reached 26 weeks of pregnancy and was then subjected to a caesarean section.

This case prompted a national debate in Paraguay about the prevalence of child sexual abuse and underage pregnancies, but the focus was it seems more on stopping adult sexual violence than the right of sexually abused girls to a safe abortion. The Guardian reported that the Clinicas hospital has recently reported almost 400 pregnancies in girls under the age of 16 years which they said had gone to term without complications. The gynaecologist in charge of the 10-year-old’s case said in a press release that he was surprised at the fuss because the previous year a nine-year-old girl had given birth.

Nonetheless, the case led to a large demonstration in the country’s capital, Asunción, and other parts of the country, as well as a worldwide protest. For example, the UN Working Group on the issue of discrimination against women in law and in practice, composed of five independent experts from all regions of the world, made the following statement regarding this case:

“The Paraguayan authorities’ decision results in grave violations of the rights to life, to health, and to physical and mental integrity of the girl as well as her right to education, jeopardising her economic and social opportunities.

“Despite requests made by the girl’s mother and medical experts to terminate this pregnancy, which puts the girl’s life at risk, the State failed to take measures to protect the health as well as the physical and mental integrity and even the life of the 10-year old girl. No proper interdisciplinary and independent expert assessment with the aim to insure the girl’s best interests was done before overturning life-saving treatments, including abortion.
“According to the World Health Organization, child pregnancies are extremely dangerous for the health of pregnant girls as they can lead to complications and death in some cases, especially as girls’ bodies are “not fully developed to carry a pregnancy.

“In Latin America, in particular, the UN reports that the risk of maternal death is four times higher among adolescents under 16 years old with 65% of cases of obstetric fistula occurring in the pregnancies of adolescents. In addition, early pregnancies are also dangerous for the babies with a mortality rate 50% higher.”

On 23 June 2015, it was reported that the doctors in Paraguay had finally acknowledged it would be too risky for this little girl’s health to allow her pregnancy to go to term. Having refused to do an abortion, they too did a caesarean section when she was more than six months pregnant. Both children survived the operation. What the future holds for either of them is uncertain, especially if the girl’s mother is kept in jail.

Caesarean section as an alternative to a refused abortion: a coincidence or an emerging policy?Developed by whom?
Overall, I believe that the cases summarised here, even though there are only four, could not have happened coincidentally in such a short space of time. There is actual policy under Guidance for health professionals in the Irish Protection of Life during Pregnancy Act 2013 (clause 6.4), 19th September 2014. The text reads as follows:

6.4 Gestational age
“An important consideration in relation to the carrying out of the medical procedure is the issue of the gestational age of the unborn. There is no time limit imposed by the Act in carrying out the medical procedure. However, the Act legally requires doctors to preserve unborn human life as far as practicable without compromising the woman’s right to life. Therefore, there is no specific stage of pregnancy below which the certifying doctor will not have to consider the possibility of preserving the life and the dignity of the unborn where practicable without compromising the life of the mother.

“Once certification has taken place, a pregnant woman has a right to a termination of pregnancy as soon as it can be arranged. The clinicians responsible for her care will need to use their clinical judgment as to the most appropriate procedure to be carried out, in cognisance of the constitutional protection afforded to the unborn, i.e. a medical or surgical termination or an early delivery by induction or Caesarean section.

“Following certification, if the pregnancy is approaching viability, it is recommended that a multidisciplinary discussion takes place to ascertain the most appropriate clinical management of the case.”

This, in turn is in line with the 8th Amendment to the Irish Constitution, which is in line with Catholic health doctrine related to pregnancy, abortion and “protection of life”:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.” (Article 40.3.3°, Irish Constitution)

Taking this one step further, we can refer to a 2012 statement from the Standing Committee of the Irish Catholic Bishops’ Conference:

“Whereas abortion is the direct and intentional destruction of an unborn baby and is gravely immoral in all circumstances, this is different from medical treatments which do not directly and intentionally seek to end the life of the unborn baby. Current law and medical guidelines in Ireland allow nurses and doctors in Irish hospitals to apply this vital distinction in practice while upholding the equal right to life of both a mother and her unborn baby.”
(Standing Committee, Irish Catholic Bishops’ Conference Statement, November 2012)

Cases have now “popped up” in four different countries within a few years of each other, when formerly this practice was completely unheard of. Is the main link between them, as occurred with cases like Savita’s, which was also not a unique case, a recent (and as yet unwritten) addition to Catholic health policy? I suspect that this policy was developed in order to avoid being held responsible for more deaths like Savita’s. However, as an alternative to forcing a woman to go to term after denying her request for an abortion, it “allows” an unwanted pregnancy to be ended earlier, but is nevertheless an abuse of the purpose of a caesarean section and of the woman’s decision not to deliver a live baby.

A c-section is an emergency procedure whose primary aims are to deliver a live baby to a live woman. Abortion is intended to prevent a live baby being born to a live woman. While the pregnancy is ended in both cases, these two procedures have nothing else in common. This policy, whoever thought it up, is a new, unethical form of imposing an unwanted medical procedure on girls and women to avoid providing an abortion. It is occurring in some of the same Catholic church-dominated countries and health systems where a safe abortion is practically unobtainable for all but rich women. While the USA does not fit this description, there are many anti-abortion politicians who would like to make it that way.

The recently tabled bill in the USA
It is likely that what appears to have been the individual treatment of a few women actually reflects or has become a new policy. That at least is what seems to have happened with the bill tabled in the Alaska USA state legislature this month, which contains a requirement that doctors terminate pregnancies “in a way that affords ‘the best opportunity for the unborn child to survive’ after the procedure, without jeopardizing the woman’s life” ‒ and at the same time also “mandates Alaska physicians to judge if a fetus is viable and outlaws abortion care in those cases”. This bill has just been published. It cannot be a coincidence that the language is so similar to the language in the Irish law and policy. Information about its intended clinical consequences is needed, and its implications need further analysis. The bill makes exceptions to the restriction in cases of incest or sexual assault, or if “the abortion is medically necessary.” Is it calling for pre-viable pregnancies to be aborted in such a way that the fetus can survive? Or does it intend only that in the case of viable fetuses, efforts to save the fetus must be made? In either case, doesn’t this inevitably mean by caesarean section?? Moreover, the bill says: “fetuses that are ‘born alive’ can be turned over to the state’s care under its ‘children in need of aid’ provision”. The implications are mind boggling.

There is no information that I know of, of who is behind these policies. They cannot be ignored, however, as they represent yet another twisted form of trying to deny women abortions.

I would welcome information from anyone who has any evidence of where this is coming from, or from anyone who has a different theory about why these cases have appeared, particularly now that this legislation has suddenly emerged in the USA.

References

Berer M. Termination of pregnancy as emergency obstetric care: the interpretation of Catholic health policy and the consequences for pregnant women. An analysis of the death of Savita Halappanavar in Ireland and similar cases. Reproductive Health Matters 2013. http://www.rhm-elsevier.com/article/S0968-8080(13)41711-1/pdf.